Monday, February 23, 2015

Still Standing in King v. Burwell

Gerard N. Magliocca

The Justices returned to work today without issuing an order for supplemental briefing on the questions raised in the media about the standing of the plaintiffs.  Why?  I can think of two reasons.

1.  Standing in the Supreme Court is purely a prudential doctrine.  In this case, the Court wants to hear the merits and just doesn't want to know about any jurisdictional problems, especially when the parties are not raising the standing issue.

2.  If the oral argument does not well from the perspective of either side, then the court could order the briefing afterwards.  That would given them an excuse to remand the case for further fact-finding or dismiss the certiorari petition as improvidently granted.  Perhaps they all want to see where the others stands before opening the escape hatch.


Meanwhile, showing even Paul Clement ("better call Paul") only can do so much (his brief didn't do the trick), SCOTUS rejected a rehearing for the litigant that was MIA & finally showed up too late.

The fact that the Court took the case before the Democrats on the DC Circuit could rule en banc to eliminate the conflict in the circuits pretty much tells you they want to hear the merits of case.

This is one of the most important separation of powers cases in years.

How might standing be raised during oral argument? Would one of the attorneys raise it initially? If not, might a Justice? Whoever raises it has to be concerned with reactions, such as suggesting a desire not to address the merits of the appeal. I can imagine an extensive internecine colloquy among the Justices that might ignore counsel.

Perhaps our own Mr. Myth may have made an impression upon the Justices regarding his claim of revolution as the only alternative to judicial review presumably on the merits.

What is required for the court to request briefs on the issue?

How many Justices have to vote for such an order?

If SCUTUS decides to determine the merits of the standing issue after they hear the appeal that will prove they are deciding cases through a naked political lens.

That would prove they ignore their role as one of the three branches of our branches.

I really hope that doesn't happen.

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Marty is engaging in some pretty heavy duty sophistry in today's post attempting to argue that the Obama immigration decrees are somehow legal.

DAPA does not make the “presence” of the aliens in question “legal” in any meaningful sense. For one thing, their presence in the U.S.—the mere status of being in the nation without having been authorized to enter—is not illegal, even without DAPA. As I wrote here in November:

[I]t is not a violation of federal law for an undocumented alien to remain in the United States. Although 8 U.S.C. 1325(a) makes it a misdemeanor for an alien to enter the United States “at any time or place other than as designated by immigration officers,” an undocumented alien has no legal obligation to leave the U.S. once she is present here. (That’s why “illegal alien” is a misnomer.)

Because the status of being present in the U.S. without authorization is not itself a violation of law, DAPA thus does not make an otherwise unlawful “presence” lawful.

If an unauthorized immigrant's presence in the United States is not illegal, that is contrary to the law, upon what authority may ICE detain and deport them? Illegal encompasses more than criminal.

DAPA does not afford covered aliens any "right" not to be removed for having entered the country without authorization (or overstaying one's visa). If DAPA were in effect and DHS Secretary Jeh Johnson tomorrow decided to remove any deferred-action alien, he would absolutely be free to do so, and a court would confirm that removal.

DAPA provides a blanket authorization for roughly five million illegal aliens to remain in the country and receive work permits and a variety of welfare state benefits. So long as DAPA is in effect, qualified illegal aliens do have a de facto right to remain in the country.

If INS restarts actual case by case reviews and deportations of illegal aliens currently covered under DAPA, then DAPA's blanket authorization and DAPA itself is no longer in effect.

Our own Mr. Myth engages in DAPA-DAPA-DOO-DOO in his feeble attempt to challenge Marty's post. Perhaps this is another of our own Mr. Myth's rants for which he may claim the only alternative if the courts don't act (the way he wants) is revolution. Perhaps our own Mr. Myth might consider that at least some, perhaps most, revolutions are acts of terrorism.

Gerard has a post at Concurring Opinions on Justice Kagan's dissent in the Yates case. (Joe and I have comments there.) Thereafter, Larry Solum at his Legal Theory Blog posted "Justice Kagan's Dissent in Yates v. U.S. Implications for King v. Burwell," that includes much, sort of unusual, editorializing by Solum. Solum is a strong advocate of the new originalism on constitutional interpretation; akin to this is statutory interpretation, which was addressed in Yates and is being addressed in King. Solum makes reference to William Eskridge's recent take on King and statutory interpretation; Eskridge is described as a leading authority on statutory interpretation. (A link to Eskridge's paper is available at the Legal History Blog, in addition to an abstract.)

There are differences between constitutional interpretation and statutory interpretation. So all of this involves interesting interplay of theories.

Query: Has Solum's editorializing strayed with what I have considered his objective, scholarly approach with his Legal Theory Blog? Something's fishy here, on a scale from 1-10. I had expected net neutrality from Solum.

There are various discussions (see, e.g., today's news roundup at Scotusblog) about the connection between Yates and King.

I'm inclined to be support those who say not to read too much into it. The "fish" case is a statutory interpretation case -- a "close" call according to your usual swing vote Justice Alito -- so there is a connection.

How much Kagan is playing the "long game" here is rather unclear though. It's a pretty snarky dissent. See also:

FWIW, I'm inclined to think Kagan is correct here. Of some note is the end of the dissent that addresses the canon of leniency, including noting the guy got thirty days in jail, whatever the potential punishment under the statute might be.

Disposing of evidence to interfere with a federal regulation is a pretty serious matter too. This case has been used by some as a case study of government run amuck. Overblown.

Focus on the divisions in Yates: Justice Ginsburg's plurality opinion was joined in by CJ Roberts and Justices Breyer and Sotomayor. Then there is the concurring opinion of Justice Alito. (Is he replacing Kennedy as the "swinger" on the Court?) And Justice Kagan's dissent is joined by Justices Scalia, Kennedy and Thomas. Kagan in her dissent challenges the plurality's somewhat reliance on the title of the Act in question in Yates. With respect to King, consider the title to the Act in issue there and its potential relevance, in context, of course.

When one is romantically jilted, friends provide comfort with "There are plenty of fish in the sea." Alas, that doesn't seem to work with jilting on the Court. I assume that during the oral argument on King Yates will be referenced by both sides at the counsel level as well as by both sides on the Justice level. Standing may have to sit down and take a back seat.

Speaking of originalism and Larry Solum's Legal Theory Blog, he has a new post "Feldman on Public Meaning Originalism." The abstract exposes the weakness of some originalists' version utilizing the hypothetical reasonable person's (as of the "fixation" period) understanding of the text of the Constitution. (Query: Did such a person have to be an adult male, and propertied, at least prior to the Civil War?) Solum points out that as Feldman recognizes that Solum is not such a reasonable person originalist.

Back in '51 in my Torts class I learned of the concept of the reasonable man -excuse me - person rule in determining standards to apply primarily to some laws of torts. This fiction was difficult to apply on a contemporary basis. It is much more difficult to go back into history to define this standard in the applicable fixation period of when the constitutional text at issue was ratified. While Solum relies on linguistics to a great extent, many trained, professional linguists disagree with "law office" linguistics employed by originalists, similar to the complaints of trained, professional historians of "law office" history that many originalists engage in.

A lawyer/speechwriter for Martin Luther King Jr. wrote a book, "What Would Martin Say?," that tries to determine his positions on issues of the day. It was written about five years ago, thirty or so years after his death.

The book starts with an introduction that talks about interpreting the Constitution and originalism. The author, even with his direct knowledge of the party in question, could only provide an inexact idea of what MLK might think about contemporary issues.

I don't read Larry Solum much, but he seems a reasonable sort of person. But, whatever brand of originalism he favors, it's something of a crapshoot, especially in hard cases.

Just what sort of "person" the "reasonable" person should be is a big question too. For instance, a few scholars are part of a project that will rewrite key cases thru a feminism lens. The question also arises in obscenity or establishment law cases. It also is a major issue in understanding history.

Mike Dorf @ Dorf on Law has a post on the King-Yates interplay. Mike does not make reference to the standing issue. He seems to focus on CJ Roberts as perhaps a key in King but with an eyebrow raised on Justice Kagan because of her dissent. He makes a point that "both sides" on the Court will stress context of the entire ACA but differ on the results.

As to CJ Roberts as umpire, how will he rule as Obamacare slides home, aware that his decision may impact the health of many in the stands? Here's the issue in song:


Fish gotta swim.
Birds gotta fly,
By neutering Obamacare
People may die.

Yes, context is important. Recall the Tea Party challenge to the federal government:

"Keep your Goddamn government hands off my Medicare."

Over at the Originalism Blog Michael ("I'm not Rappaport") Ramsey has a post on a King dialog. Ramsey expresses his interest in King with respect to "statutory originalism," however that is defined. Assuming like constitutional originalism it is a search for public meaning or public understanding in the current "fixation" period, quite a bit of evidence has been presented, including conflicting statements made by some since Obamacare was enacted. Sifting through it all is the problem. But isn't statutory interpretation significantly different from constitutional originalism? The former is part of a code, whereas the Constitution is not.

Off topic:

Speaker Bo(eh)ner's effort to extend DHS funding for 3 weeks may be related to the appearance of Bibi for his speech in the House expected to challenge the Obama Administration's negotiations with Iran. Does Bo(eh)ner love America?

Still off topic:

A one-week DHS funding extension, in the midst of which (March 3rd) Bibi will speak in Congress, may be too exhausting for Speaker Bo(eh)ner and the Republican controlled House to digest. Check out Robert Kagan in the WaPo today and Jeffrey Goldberg in the Atlantic for their views on Bibi's gig. Bibi is too kind, too soft, nickname for Netanyahu; perhaps Yahu would be more fitting for his partisan interjection into American politics for his reelection bid in Israel later this month as well as House Republicans say "NO" to everything Obama.

But I ask again, "Does Bo(eh)er love America?"

Back to "statutory originalism" and its contrast with constitutional originalism. Compare the plethora of contemporary history relative to ACA that one does not have to "discover" (and is readily available to all, not just the legal community and trained historians) unlike in the case of long ago history (usually in the timeframes of 1787-91 and 1866-68) being discovered, or re-discovered, by originalists employing "law office" history. If we can't be sure of what has happened currently, contemporaneously, then how much confidence can we have on the unearthing of history in those timeframes for the purpose of interpreting/construing the Constitution based upon the then public meanings/understandings regarding which "reasonable persons" today may differ on?

Another but softer off topic:

Leonard Nimoy grew up in Boston's West End. I grew up in the Roxbury district of Boston. He was 83; I am 84. Nimoy graduated from Boston English High School in 1949; I graduated in 1947. In that overlap I do not recall him back then. I was not a Star Trek fan although I was well aware of the TV show; but I was busy practicing law and raising a family.

Nimoy appeared on a PBS program that he narrated on the West End, talking about how he grew up in that ethnically mixed neighborhood before urban renewal in the 1960s that devastated that vital community that abutted the Charles River. As a kid growing up in Roxbury, I was familiar with the West End as my local team played West End kids in baseball games on their baseball field with a view of the Charles River.

Boston English High School was a central high school located in Boston's South End. It was there that I was part of a melding of the various ethnic groups in Boston's varied neighborhoods. It was boys only at the time. There was a lot of camaraderie getting to know kids from outside my own neighborhood.

I still have my yearbook and occasionally go through it from time to time as those were happy days. Perhaps Nimoy may be pictured in some of the clubs and sports at English High.

But getting back to the West End, his narration on PBS was very meaningful. Displaced West Enders today still get together to reminisce on their childhoods in the West End. A well knit community had been disrupted by urban renewal that did not understand how viable that neighborhood was - as its former residents and their offspring continue to remember.

I hope Nimoy is in my yearbook. And may he prosper wherever he may be. For many, his legacy was Star Trek's Mr. Spock. For me, his legacy is that he remembered his old neighborhood and its West End House that helped direct him into his career. Here in Boston, even non-West Enders respect that old neighborhood and its residents. Thank you Leonard Nimoy.

His last tweet:

"A life is like a garden. Perfect moments can be had, but not preserved, except in memory. LLAP"

"Long live & Prosper."

The Boston connection explains another recent post about not counting out Tom Brady.

I forgive you Mr. Nimoy.

Sen. Rand Paul won the CPAC straw poll, billionaire libertarian Ganters apparently suffering from myopia.

Joe has commented several times on Burt Neuborne's "Madison's Music: On Reading the First Amendment." Over at the Legal History Blog a link is provided to an excerpt at Salon that might get non-originalists toe-tapping. Imagine how long (according to Neuborne) it took the Court to really, really address the 1st A - and to backtrack in recent years.

Andrew Koppelman's new article -- purporting to show how so many people are viewing things the wrong way -- is rather confused by my reading. Also, late:

"As I’ve said, I’m a gay rights advocate. We won. Good. But now I want to talk less about that and more about America’s neglected, violent ghettoes, its interminable drug war, its bulging prisons, its radical constriction of government services, its chronically high unemployment, and its increasing concentration of wealth at the top. The growing neo-Ayn Rand antiwelfarism is irreconcilable with Christianity. Only Christians can effectively point that out."

Not quite yet, Mr. Koppelman. This is akin -- months before Loving v. VA -- saying interracial marriage won. And, this without a federal non-discrimination law and the right in many states still to fire a person for being gay.

I think all types of believers can talk on those issues as well. I'm supportive of religious choice & accommodation. So, e.g., it was wrong in Hobby Lobby to make it harder for individual employees to use their insurance to make choices that match their religious beliefs. Their direct choice, as with how their use other compensation to carry out their religious choices, significant. More so than the indirect rules applied to employers in this context.

Anti-discrimination law has various functions. Thus, if there are five groceries in a a town, the ability to go to four that doesn't discriminate by race doesn't mean the fifth can. Economic scarcity isn't the only reason here. Even if the owners deeply feel in a religious way the races should be separate or women should be covered and only come in with their brothers and husbands.

There are still many ways to accommodate religion but equality in PUBLIC accommodations should not be sacrificed. This is especially the case when a firm is incorporated & get special benefits. A business can even choose certain people to deal with certain customers, such as not using Muslims in the pork dept.

Anyway, if we have a federal anti-discrimination policy perhaps we can determine how best to handle a few hard cases.

For those interested in Leonard Nimoy's West End (Boston), check this website:

I did look through my Boston English High School yearbook but my eyesight issues were a handicap in seeking a photo that included Nimoy. I did recall a lot of happy times, though. Before high school in the Boston School system, the lower grades did not provide cafeterias, with morning sessions that ended at 12:00 noon; then back home for lunch, returning to school for the afternoon session at 1:15 PM. Then in high school there was the cafeteria, where over 3,000 students ate in shifts, most bringing their lunches from home, getting drinks and desserts, breaking bread with kids from other neighborhoods, learning of the lives of kids from the various ethnic neighborhoods of Boston. Oh, the envy of many of the enormous aromatic sandwiches of the Italian kids from Boston' North End. And then there was the "Hit'm with a Spuckie!" student postings. The camaraderie of lunch continued through college, law school and practicing law. How I miss that.

This thread might be ready to go. GM might post again after the 3/4 oral arguments. We will get a sense of how the justices are thinking.

A few have posted this nice letter Leonard Nimoy wrote to an interracial teen fan in the '60s:

ME TV, a classics station, showed a classic Spock "Star Trek" episode last night. "Amok Time." Those interested can find the whole thing on YouTube.

The station also will show various episodes of series tonight (e.g., Columbo and "Get Smart") for which Nimoy guest starred. Also, he was a regular on the "Mission Impossible" series, also shown on that channel.

Our dictator is now working on raising taxes by decree.

I can hardly wait for Marty & Co. to attempt to justify that one.

Our own Mr. Myth once again demonstrates that he is obviously a Dick-Tater. Query: Will he emerge from his fantasy revolution as such?

Over at H-Net Reviews Patrick Jones reviews Timothy Nels Thurber's"Republicans and Race: The GOP's Frayed Relationship with African-Americans, 1945-1974." (A link is available at the Legal History Blog's Sunday Book Roundup 3/1/15.) The time frame in the title is key. The reviewer notes: "As Thurber writes in his epilogue, even in the era of Obama,when an ongoing demographic transformation makes clear that the GOP faces increasingly difficult prospects if it remains an overwhelmingly white party, 'Republicans also showed little inclination to rethink long-standing attitudes about race, politics, and the role of the state." He goes on to conclude, 'A two-term African American president, elected largely by women, youth, and nonwhites, indicated that much had changed since the New Deal Yet as far as Republicans were concerned, nothing had changed.'"

Yes, the current base of the Republican Party consists of former Democrats from the former slave states.

I hope Sandy reads comments at this Blog. I was reminded of Sandy after downloading Allison L. LaCroix's "Continuity in Secession: The Case of the Confederate Constitution." (A link is available at the Legal History Blog.) This essay is LaCroix's contribution to "Nullification and Secession" that is forthcoming edited by Sandy. On other threads at this Blog, I have commented on Sandy's paper of over a year ago at the Univ. of Arkansas Law School on what is soon to be a book. We know of Sandy's long concern with political dysfunction and whether the Constitutions contributes to it. Are nullification and secession potential results? If so, can revolution be involved?

I wish Sandy would provide a post on this project, with or without comments allowed, as the matters of nullification and secession are important in the current political climate.

With respect to my last comment, I should have noted that Larry Solum has a post at his Legal Theory Blog on Jared A. Goldstein's "To Kill and Die for the Constitution: How Devotion to the Constitution Leads to Violence" that seems, from the abstract, to be relevant to the points I raised.

Marty is spinning again.

"the challengers should lose...because their reading is “objectively absurd.” In particular, if the challengers were correct that tax credits are unavailable for insurance purchased on a federally established Exchange, Congress’s directive to the Secretary of HHS to establish and operate such federal Exchanges in States that have failed to do so would make no sense at all"

Of course it does.

Obamacare mandates all the uninsured buy health insurance upon pain of fine. The statute provides for state and federal exchanges to provide that insurance.The purpose of the exchanges are NOT to provide subsidies. Half of the uninsured do not even qualify for subsidies because the make too much money or are illegal immigrants.

"For example, as then-Justice Rehnquist wrote in Griffin v. Oceanic Contractors, Inc., 458 U.S. at 571, “in rare cases the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters, and those intentions must be controlling.”

Marty is grasping.

This is not one of those rare cases. The Democrats plainly intended to compel states to establish their own exchanges.

"If Congress had truly intended to use the denial of tax credits—and destruction of the State’s insurance market—as a dramatic means of inducing the States to establish Exchanges, surely there would have been some mention of it [in the statute].


Congress does not have to explain their mandates. Indeed, explaining all the mandates in the 2,500 page bill would have tripled its size.

"As the challengers describe it, Congress instead buried the momentous no-subsidy condition in a provision of the tax code directed to individuals, not States."


Most of the statute was hurriedly drafted in secret and is a hot mess of unorganized contradictions. That does not provide the IRS or the courts to rewrite an unworkable law in an attempt to make it work.

However, Marty is completely correct to suggest that arguments base on legislative history have no evidence to back them up.

Once again, most of this bill, including the provision at issue, was drafted in secret and then voted on before any of the backbench Congress critters had a chance to read it. The Democrats rubber stamped the bill. Unless they were among the handful in the back rooms drafting the bill, none of the Democrats who voted for the bill had an "intent." Indeed, I doubt any of the backroom Democrats read the entire damned thing outside of their own sections.


GM at Concurring Opinions recommended the new book "Madison's Gift." I started reading it. It's well written though the first section at least doesn't have that many new insights. I think the Monroe and Dolley Madison sections might cover ground less well trodden upon.

GM at Concurring Opinion seems - to take a dig at another blog -- "the card says Moops" (Seinfeld reference) curious. Why he thinks Abbie Gluck et. al. here and others (e.g., at Dorf on Law) are wrong is unclear.

Getting back to the theme of Gerard's post - standing - we should find out today who, if anyone, will raise the issue during oral argument, and if raised, how it will play out. The late Finley Peter Dunne's Mr. Dooley reincarnated might modify his early in the 20th century comment that the Court follows the "illiction returns" to the Court trying to "jiggle coming illictions." Recall the role of the Court in Bush v. Gore. Perhaps the Court's conservatives are looking to the 2016 campaigns. Bush v. Gore led to 8 years of Bush/Cheney that ended with its 2007-8 Great Recession. Polling on the Court in comparison to the Executive and Legislative branches should be interesting. Perhaps CJ Roberts cares, and possibly Justice Kennedy. But let's face it, the Court can be, has been and may continue to be political.

At Concurring Opinions, GM was on it almost in real time (must have connections) -- RBG asked a standing question. Transcript later in day, mid-argument there is already comments on Twitter and at SCOTUSBlog.

More from SCOTUSBlog:

"When the Solicitor General took the lectern, he elected to begin by talking about standing, which had been raised by Justice Ginsburg. The short version of his point is that as long as one of the plaintiffs had to pay a tax penalty in 2014, one of the plaintiffs would have standing. The SG explained that the government simply does not know whether that is true because there has been no fact-finding in the case. He further stated that as long as the other side does not represent that their clients lack standing, he would assume that they do in fact have it, and proceed to the merits. There was a little bit of skeptical questioning about this: the Chief Justice and Justice Alito both suggested that standing should not be adjudicated at this stage. And the SG did not fight them on that. Interestingly, Justice Sotomayor also jumped in to say that the Court could accept Carvin’s representation that there is standing, thus suggesting her desire to reach the merits."

The question has some academic importance but realistically it is not really something this will rise or fall on. We can cynically note what this means & that's a role for academics - flag things like that.

I am unsure why the Obamacare defenders are hanging their hat on Justice Kennedy.

Kennedy is looking at the plain English of the provision limiting subsidies to exchanges established by the states and correctly views the provision as Congress attempting to blackmail the states into building insurance exchanges. Later, Kennedy suggests to the government that Chevron does not grant IRS the power to rewrite the provisions to extend billions of dollars in subsidies.

Here is the transcript.


Is our own Mr. Myth also "unsure" of why Michael Carvin, counsel for the Petitioners indicated in substance this to the Wall Street Journal before oral arguments?

Carvin argued that the difference between this lawsuit and the one in 2012 is that unlike the 2012 challenge, the argument on Wednesday is on "a statute that was written three years ago, not by dead white men but by living white women and minorities."


Does the quoted portion suggest a frame of mind on counsel's part towards both Obamacare and Obama?

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